Note:If you do not have Acrobat Reader, or if you have problems reading our files with your current version of Acrobat Reader, the latest version of Acrobat Reader is available free at www.adobe.com.

Full Text of Decision

37913

41806SERVICE DATE – OCTOBER 6, 2011

DO

SURFACE
TRANSPORTATION BOARD

DECISION

Docket No. AB 3
(Sub-No. 137X)

MISSOURI PACIFIC
RAILROAD COMPANY—ABANDONMENT

EXEMPTION
—IN RED RIVER AND BOWIE COUNTIES, TEX.

Decided:October 5, 2011

By decision served and published in
the Federal Register (61 Fed. Reg. 66,748) on December 18, 1996,
the Missouri Pacific Railroad Company (MP)[1] was granted an exemption under
49 U.S.C. § 10502 from the prior approval requirements of
49 U.S.C. § 10903 to abandon a line of railroad extending from
milepost 23.0 at New Boston, in Bowie County, Tex., to the end of the track at
milepost 61.5 near Clarksville, in Red River County, Tex., a distance of
approximately 38.5 miles.[2]The
exemption became effective on January 17, 1997. On December 30, 1996, Rails to Trails
Conservancy (RTC) timely filed a request for issuance of a notice of interim
trail use (NITU) and submitted a statement of willingness to assume financial
responsibility for interim trail use and rail banking pursuant to the National
Trails System Act, 16 U.S.C. § 1247(d) and 49 C.F.R. § 1152.29. RTC also acknowledged that the use of the
right-of-way as a trail is subject to future reactivation of rail service.On January 3, 1997, UP
agreed to the imposition of a trail use condition in this proceeding.

By decision and NITU served on
February 14, 1997, a 180-day period was authorized for RTC to negotiate an
interim trail use/rail banking agreement with MP for the
right-of-way. In a letter filed on
July 16, 1997, UP notified the Board that an interim trail use agreement had
been reached with RTC and the right-of-way had been conveyed to RTC for use as
an interim trail, effective July 3, 1997.The right-of-way between mileposts 23.0 and 42.59 was subsequently
conveyed to Bowie County, Tex. (the County) on July 1, 2005.[3]

The County filed a petition on
April 10, 2007, to terminate trail use over a 50-foot wide portion of the
100-foot wide railroad right-of-way that it owns.According to the County, it plans to sell
that 50-foot wide portion to the Texas Department of Transportation (TxDOT) to allow TxDOT to widen a
segment of US Highway 82, which parallels the right-of-way.The Board, on May 16, 2007, directed the
County to submit a statement demonstrating that the remaining 50 feet of right-of-way
would be adequate to accommodate rail service.

The County filed a supplemental
petition on July 14, 2010.That pleading
failed to provide any explanation of the adequacy of the narrowed corridor as a
right-of-way for potentially reactivated rail service.The Board denied the petition on November 5,
2010.

The County filed a second
supplemental petition to terminate trail use over the northernmost 50 feet of
the right-of-way on July 27, 2011, between mileposts 25.139 and 34.429.The County engaged an engineering firm, H.W. Lochner, Inc. (Lochner), to
provide an evaluation as to whether retaining the southern 50 feet of the
100-foot corridor in that section of the right-of-way would be sufficient to
permit the possible reestablishment of rail service.The County submitted a verified statement
from John Goodwin, a registered professional engineer employed by Lochner.Mr. Goodwin
states that a field evaluation was made of the affected mileage and says that
“the study determined that rail service could be reestablished for a rail
facility meeting commonly used design criteria” and that “no impediments exist
along the route that would not allow for a rail facility to be built in the
future.”

On August
11, 2011, UP filed a response to the County’s request.UP states that it concurs with the County’s
request.UP states that the portion of
the rail corridor scheduled to be sold to TxDOT will
not adversely affect nor conflict with UP’s ability to operate the remaining
width of the corridor as a rail line, should the need arise.[4]

The
County’s petition seeks to terminate interim trail use over the described
northernmost 50 feet of the right-of-way by vacating the NITU for that
portion.Petitioner also seeks authority
to abandon the same 50-foot width of the right-of-way.Because interim trail use will continue on a
portion of the right-of-way and the sale of half the width of the right-of-way
will not impede the potential restoration of rail service in the corridor, the
County need not seek abandonment authority in order to sell the property.Moreover, the County has now demonstrated
with adequate specificity that the remaining 50-foot wide right-of-way would be
adequate to permit future rail operations.

The County’s petition to modify or
vacate the NITU invokes 49 C.F.R. § 1152.29.The provisions in those regulations for vacating NITUs were developed to
apply to situations where the length of a railbanked
line would be shortened—i.e., where the abandonment would be partly consummated
– not where, as here, the right-of-way will be narrowed, but will be adequate
for potential future rail service.Given
the circumstances presented here, it is unnecessary to modify the NITU.The Board will, however, clarify that the 50
feet of right-of-way transferred to TxDOT to widen US
Highway 82 is no longer part of the NITU that the Board imposed in this
proceeding.

This action
will not significantly affect either the quality of the human environment or
the conservation of energy resources.

It is ordered:

1.The County’s petition is granted as described herein.

2.This decision is effective on its service date.

By the Board, Rachel D. Campbell,
Director, Office of Proceedings.

[1]MP merged with
and into Union Pacific Railroad Company (UP).In this decision, the abandoning railroad will be referred to as either
MP or UP.

[2]In the same
decision, the Board also exempted discontinuance of service on the line. SeeTex.
Ne. Div., Mid-Mich. R.R.—Discontinuance of Service Exemption—In Red River & Bowie Counties, Tex., AB 364 (Sub-No. 3X).

[3]In a joint motion filed on June 15, 2005, RTC
and the County requested the substitution of the County as interim trail user
for that portion of the right-of-way from milepost 23.0 to milepost 42.59 at
the Red RiverCounty line, including all bridges and ballast,
a distance of approximately 19.59 miles. UP consented to the substitution request and, by decision and NITU
served on July 1, 2005, the request was granted.

[4]On August 1,
2011, The Partnership for the Pathway filed a notice of intent to participate
in the proceeding but did not submit comments.